Dunn and Repatriation Commission

[2007] AATA 1996

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1996

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No W 200600398

VETERANS' APPEALS DIVISION		)
Re		DAWN ELEANOR DUNN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr P A Staer, Member

Date28 November 2007

PlacePerth

Decision The Tribunal affirms the decision under review.

............[Sgd S D Hotop]..........

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – veteran served in Royal Australian Navy from 1947 to 1959 – veteran rendered operational service in 1947-1951 and 1953-1954 – veteran contracted malignant neoplasm of prostate in 1995 – veteran claimed malignant neoplasm of prostate war-caused – veteran died from malignant neoplasm of prostate in June 2003 – veteran’s claim maintained by applicant as widow – Statement of Principles – reasonable hypothesis that veteran’s malignant neoplasm of prostate connected with operational service – Tribunal satisfied beyond reasonable doubt that factual foundation of reasonable hypothesis disproved – veteran’s malignant neoplasm of prostate not war-caused – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth), s 7(1), s 9(1), s 120, s 120A and s 196B

Statement of Principles concerning Malignant Neoplasm of the Prostate (Instrument No 28 of 2005)

Statement of Principles concerning Malignant Neoplasm of the Prostate (Instrument No 84 of 1999)

Bull v Repatriation Commission (2001) 188 ALR 756

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrne v Repatriation Commission (2007) 97 ALD 359

Byrnes v Repatriation Commission (1993) 177 CLR 564

Collins v Administrative Appeals Tribunal (2007) 96 ALD 536

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Dunn (2006) 44 AAR 131

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Keeley (2000) 98 FCR 108

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

28 November 2007   Deputy President S D Hotop
  Dr P A Staer, Member          

Introduction

1.       This matter is again before the Tribunal following a successful appeal to the Federal Court of Australia by the Repatriation Commission (“the respondent”) against a decision of the Tribunal made on 2 June 2005: see Repatriation Commission v Dunn (2006) 44 AAR 131.

2.       The applicant, Dawn Eleanor Dunn, is the widow of John Forbes Dunn (“the veteran”) who died from prostate cancer (malignant neoplasm of the prostate) on 15 June 2003.  The veteran was first diagnosed with prostate cancer in February/March 1995.

3.       The veteran, whose date of birth was 1 November 1929, served in the Royal Australian Navy (“RAN”) from 12 July 1947 to 11 July 1959, and he rendered operational service, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 12 July 1947 to 30 June 1951 and from 2 November 1953 to 16 July 1954.

4. On 20 March 2002 the veteran made a claim for a disability pension under Pt II of the VE Act, and on 30 April 2002 a delegate of the respondent decided that the veteran’s solar keratoses condition was war-caused but…